People v. McEntyre

127 Mich. App. 731 (1983) 339 N.W.2d 538

PEOPLE
v.
McENTYRE

Docket No. 59205.

Michigan Court of Appeals.

Decided August 2, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Kim Robert Fawcett), for defendant.

Before: WAHLS, P.J., and M.J. KELLY and N.J. LAMBROS,^[*] JJ.

PER CURIAM.

Defendant was convicted of breaking and entering an occupied dwelling with the intent to commit larceny. MCL 750.110; MSA 28.305. He was placed on probation. After finding that defendant had violated the terms of his probation, the sentencing judge revoked defendant's probation and sentenced him to a prison term of 7 1/2 to 15 years. Defendant appeals by right.

Defendant first claims that his acquittal of criminal charges based on a set of facts precluded the revocation of his probation based on the same set of facts. His argument is based on principles of collateral estoppel to the extent that those principles are embodied in the Double Jeopardy and Due Process Clauses of the state and federal constitutions. Defendant specifically relies on the decision of the Illinois Supreme Court in People v Grayson, 58 Ill 2d 260; 319 NE2d 43 (1974), cert den 421 U.S. 994; 95 S. Ct. 2001; 44 L. Ed. 2d 484 (1975).

We believe that the position taken by the Illinois court should not be adopted in Michigan. In a majority of jurisdictions, acquittal of criminal charges does not bar revocation of probation based on the same facts. State v Jameson, 112 Ariz 315; 541 P2d 912; 76 ALR3d 556 (1975); In re Coughlin, 16 Cal 3d 52; 545 P2d 249; 127 Cal Rptr 337 (1976); Russ v State, 313 So 2d 758 (Fla, 1975), cert den 423 U.S. 924; 96 S. Ct. 267; 46 L. Ed. 2d 250 (1975); Johnson v State, 240 Ga 526; 242 SE2d 53 (1978), cert den 439 U.S. 881; 99 S. Ct. 221; 58 L. Ed. 2d 194 (1978); Jackson v State, ___ Ind App ___; 420 NE2d 1239 (1981); Scott v State, 238 Md 265; 208 A2d 575 (1965); Moore v State, 644 P2d 1079 (Okla Crim App, 1982); State v Fortier, 20 Or App 613; 533 P2d 187 (1975); Commonwealth v Brown, 281 Pa Super 348; 422 A2d 203 (1980); State v Delp, 614 S.W.2d 395 (Tenn Crim App, 1980); Bradley v State, 608 S.W.2d 652 (Tex Cr App, 1980); Marshall v Commonwealth, 202 Va 217; 116 SE2d 270 (1960); State v Cyganowski, 21 Wash App 119; 584 P2d 426 (1978). See also the discussion in People v Buckner, 103 Mich. App. 301; 302 NW2d 848 (1980), and People v Nesbitt, 86 Mich. App. 128, 136; 272 NW2d 210 (1978). We agree with the courts in the majority of jurisdictions that have considered the question that the major stumbling block to acceptance of defendant's theory is the higher burden of proof imposed in a criminal trial.

Defendant's second claim on appeal is that the trial judge failed to find a violation of law upon which revocation of his probation could be based. We agree with defendant that the findings of fact made by the trial judge are not very clear, but conclude that a remand for more detailed findings would be useless. The findings must be read in the context of the proofs presented and the theories argued by counsel at the revocation hearing. We believe that the judge expressed in his findings of fact his belief that the proofs showed that defendant was guilty of either larceny or receiving and concealing stolen property in connection with his possession of the victim's property shortly after the murder. We do not think that defendant's explanation of the judge's findings is plausible.

The prosecutor concedes that defendant is entitled to be resentenced after the preparation of a new presentence report.

The order revoking defendant's probation is affirmed. Remanded for resentencing.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.